1. This is an appeal from the decision of the Hon. Cheloti, SRM, delivered on 31st August 2021, in Kajiado CMCC 442 of 2017, between the respondent, then the plaintiff, and the appellants, then the defendants. The learned magistrate, in the impugned decision, awarded the respondent Kes.1,820,000/- for loss of dependency, Kes.100,000/- for pain and suffering, Kes.100,000/- for loss of expectation of life, and special damages of Kes.80,000/-. The respondent was also awarded the costs of the suit to be borne by the 1st and 2nd appellants.
2. The appellants filed a memorandum of appeal dated 21st September 2021. The appeal raises 4 concise grounds of Appeal. These are that:-
1. The learned magistrate erred in law and fact in apportioning 100% liability to the defendants despite evidence on record that showed the respondent’s contribution to the accident;
2. The learned magistrate erred in law and fact in adopting a multiplier of 35 years, which was exceedingly high, and without any factual or authoritative basis;
3. The learned magistrate erred in law and fact in applying the minimum wage for a skilled worker despite the deceased not being employed, and there being no proof provided to confirm that he was a student; and
4. The learned magistrate erred in law and fact in awarding special damages that are manifestly higher than what the plaintiff had claimed and in total disregard of what the plaintiff had specifically provided receipts for.
The Pleadings in the Trial Court
3. The respondent pleaded that the deceased was walking along Kitengela – Isinya road, at the junction to Ngurunga, when he was hit by the motor vehicle registration KBT 160F driven by the 1st appellant and owned by the 2nd appellant.
4. The appellants filed a defence dated 5th December 2017. In the said defence, the first and second appellants blamed the deceased and motor vehicle registration No. KAA 945Q.
5. The respondent was granted leave to add a third party through an amendment. The third-party was removed as the motor vehicle had already been sold to the second appellant. In other words, both accident vehicles belonged to the same party.
Evidence Adduced Before the Trial Court
6. The respondent called three witnesses. PW1, Dr Kenneth Munyi produced the post-mortem report. He testified that the deceased was 21 years old at the time of the accident, with good nutrition and a medium physique. His opinion was that the deceased died due to internal bleeding as a result of the road accident. He stated that during his examination, he found no signs of trauma or broken bones from the external part of the body of the deceased.
7. The second witness was Lucas Muchoki, the deceased\'s father. He testified that his son died in Kitengela Medical Centre while receiving treatment following the road traffic accident. He adopted his witness statement and produced the receipts.
8. PC Richard Kamau was the third witness. He was the investigations officer. He produced the police abstract. PW3 blamed the first appellant, who was driving the motor vehicle owned by the second appellant. The motor vehicle collided with another car while overtaking and knocked down the deceased, who was walking on the pedestrian walkway.
9. The appellants closed their case without calling witnesses.
Hearing of the Appeal
10. The appeal was canvassed by way of written submissions.
Appellants’ submissions
11. The appellants filed written submissions on 3rd November 2022. They urged that the trial court was wrong to apply the minimum wage of a skilled worker in respect of the deceased as he was an unemployed student at the time of the accident. The appellants challenged the use of a multiplier of 35. Relying on decided cases, it was urged that a lower multiplier be used. The appellants submitted that the trial court awarded special damages that exceeded the respondent\'s claim in the plaint.
Respondent’s submissions
12. I have not had the advantage of reading the Respondent’s submissions.
Analysis
13. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, remember that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
14. In the case of Peters vs Sunday Post Limited [1985] EA 424 the Court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
15. In Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:-
\"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...\"
16. The appellants blamed the deceased and the third party for the occurrence of the accident. It, however, turned out that the second defendant was also the owner of the said motor vehicle. Since the 1st appellant knew how the accident occurred, he had the duty to testify under section 112 of the Evidence Act. The said section states that:-
“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
17. My understanding of the law is that in the absence of a defence against the evidence of the plaintiff, the defendant is deemed to have not opposed the said evidence. In my view, the court should construe the failure to testify negatively. The failure by the 1st Appellant, the one person present at the accident scene, must be interpreted to mean that had he testified, the evidence would have been adverse to the appellants.
18. In the circumstances, I do not fault the Court\'s finding that the appellants were 100% to blame for the accident. The court cannot apportion liability in the absence of evidence.
19. The appeal on liability is therefore dismissed as the same is bereft of merit.
Quantum of damages
20. The appellants contend that the award of damages for loss of dependency was excessive.
21. Regarding the multiplier, I agreed with the appellants that the multiplier of 35 years is excessive. It is not only the age of the deceased that is important but also the age of the dependants. Only the father is pleaded as a dependent (albeit not in the usual way). The court erred in adopting such a high multiplier when the father\'s age was not given. In the circumstances, I adopt a loss of dependency of 22 years.
22. In my view, the court correctly used the minimum wage of Kes.13,000/-. I cannot fault it for what is an exercise of discretion. The appellants submitted that Kes.5,436/- should have been used instead. I reject the same as it relates to unskilled workers. It also ignores the minimum wage applicable in 2017. The award of General damages works out as follows:-
Kes.13,0000x1/3x22x12=Kes.1,144,000/-
23. I therefore set aside the award of Kes.1,800,000/- and substitute it with a sum of Kes.1,144,000/- as general damages for loss of dependency.
Special damages
24. The law is that special damages must be specifically pleaded and proved. In this case the respondent appears to have pleaded certain figures and proceeded to prove different amounts. In my view, the trial Court should have allowed only the amount that was pleaded. In the circumstances, I set aside the award of special damages of Kes. 80,000/- awarded by the court below. I substitute the same with the pleaded amount of Kes.35,875/-.
25. From the foregoing the appeal has succeeded in part.
Determination
26. Based on the foregoing, the appeal succeeds in part.
27. Consequently, I make the following orders: -
(a) I allow the appeal for the loss of dependency and set aside the award of Kes.1,820,000/- and in lieu thereof, I award the respondent Kes. 1,144,000/-;
(b) The appeal against the award of Kes.100,000/-for pain and suffering is dismissed;
(c) The appeal against the award of Kes.100,000/- for loss of expectation of life is also dismissed;
(d) The special damages of Kes.80,000/- are set aside and substituted with the pleaded and proved amount of Kes.35,875/-;
(e) As the appeal has partly succeeded, I award the appellants costs of Kes.50,000/-. The respondent shall have the costs of the court below;
(f) There will be 30 days stay of execution; and
(g) The file is closed.
Dated and signed at MOMBASA this 28th day of April 2023. Judgment delivered through Microsoft TEAMS.
2. The appellants filed a memorandum of appeal dated 21st September 2021. The appeal raises 4 concise grounds of Appeal. These are that:-
1. The learned magistrate erred in law and fact in apportioning 100% liability to the defendants despite evidence on record that showed the respondent’s contribution to the accident;
2. The learned magistrate erred in law and fact in adopting a multiplier of 35 years, which was exceedingly high, and without any factual or authoritative basis;
3. The learned magistrate erred in law and fact in applying the minimum wage for a skilled worker despite the deceased not being employed, and there being no proof provided to confirm that he was a student; and
4. The learned magistrate erred in law and fact in awarding special damages that are manifestly higher than what the plaintiff had claimed and in total disregard of what the plaintiff had specifically provided receipts for.
The Pleadings in the Trial Court
3. The respondent pleaded that the deceased was walking along Kitengela – Isinya road, at the junction to Ngurunga, when he was hit by the motor vehicle registration KBT 160F driven by the 1st appellant and owned by the 2nd appellant.
4. The appellants filed a defence dated 5th December 2017. In the said defence, the first and second appellants blamed the deceased and motor vehicle registration No. KAA 945Q.
5. The respondent was granted leave to add a third party through an amendment. The third-party was removed as the motor vehicle had already been sold to the second appellant. In other words, both accident vehicles belonged to the same party.
Evidence Adduced Before the Trial Court
6. The respondent called three witnesses. PW1, Dr Kenneth Munyi produced the post-mortem report. He testified that the deceased was 21 years old at the time of the accident, with good nutrition and a medium physique. His opinion was that the deceased died due to internal bleeding as a result of the road accident. He stated that during his examination, he found no signs of trauma or broken bones from the external part of the body of the deceased.
7. The second witness was Lucas Muchoki, the deceased\'s father. He testified that his son died in Kitengela Medical Centre while receiving treatment following the road traffic accident. He adopted his witness statement and produced the receipts.
8. PC Richard Kamau was the third witness. He was the investigations officer. He produced the police abstract. PW3 blamed the first appellant, who was driving the motor vehicle owned by the second appellant. The motor vehicle collided with another car while overtaking and knocked down the deceased, who was walking on the pedestrian walkway.
9. The appellants closed their case without calling witnesses.
Hearing of the Appeal
10. The appeal was canvassed by way of written submissions.
Appellants’ submissions
11. The appellants filed written submissions on 3rd November 2022. They urged that the trial court was wrong to apply the minimum wage of a skilled worker in respect of the deceased as he was an unemployed student at the time of the accident. The appellants challenged the use of a multiplier of 35. Relying on decided cases, it was urged that a lower multiplier be used. The appellants submitted that the trial court awarded special damages that exceeded the respondent\'s claim in the plaint.
Respondent’s submissions
12. I have not had the advantage of reading the Respondent’s submissions.
Analysis
13. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, remember that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
14. In the case of Peters vs Sunday Post Limited [1985] EA 424 the Court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
15. In Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:-
\"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...\"
16. The appellants blamed the deceased and the third party for the occurrence of the accident. It, however, turned out that the second defendant was also the owner of the said motor vehicle. Since the 1st appellant knew how the accident occurred, he had the duty to testify under section 112 of the Evidence Act. The said section states that:-
“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
17. My understanding of the law is that in the absence of a defence against the evidence of the plaintiff, the defendant is deemed to have not opposed the said evidence. In my view, the court should construe the failure to testify negatively. The failure by the 1st Appellant, the one person present at the accident scene, must be interpreted to mean that had he testified, the evidence would have been adverse to the appellants.
18. In the circumstances, I do not fault the Court\'s finding that the appellants were 100% to blame for the accident. The court cannot apportion liability in the absence of evidence.
19. The appeal on liability is therefore dismissed as the same is bereft of merit.
Quantum of damages
20. The appellants contend that the award of damages for loss of dependency was excessive.
21. Regarding the multiplier, I agreed with the appellants that the multiplier of 35 years is excessive. It is not only the age of the deceased that is important but also the age of the dependants. Only the father is pleaded as a dependent (albeit not in the usual way). The court erred in adopting such a high multiplier when the father\'s age was not given. In the circumstances, I adopt a loss of dependency of 22 years.
22. In my view, the court correctly used the minimum wage of Kes.13,000/-. I cannot fault it for what is an exercise of discretion. The appellants submitted that Kes.5,436/- should have been used instead. I reject the same as it relates to unskilled workers. It also ignores the minimum wage applicable in 2017. The award of General damages works out as follows:-
Kes.13,0000x1/3x22x12=Kes.1,144,000/-
23. I therefore set aside the award of Kes.1,800,000/- and substitute it with a sum of Kes.1,144,000/- as general damages for loss of dependency.
Special damages
24. The law is that special damages must be specifically pleaded and proved. In this case the respondent appears to have pleaded certain figures and proceeded to prove different amounts. In my view, the trial Court should have allowed only the amount that was pleaded. In the circumstances, I set aside the award of special damages of Kes. 80,000/- awarded by the court below. I substitute the same with the pleaded amount of Kes.35,875/-.
25. From the foregoing the appeal has succeeded in part.
Determination
26. Based on the foregoing, the appeal succeeds in part.
27. Consequently, I make the following orders: -
(a) I allow the appeal for the loss of dependency and set aside the award of Kes.1,820,000/- and in lieu thereof, I award the respondent Kes. 1,144,000/-;
(b) The appeal against the award of Kes.100,000/-for pain and suffering is dismissed;
(c) The appeal against the award of Kes.100,000/- for loss of expectation of life is also dismissed;
(d) The special damages of Kes.80,000/- are set aside and substituted with the pleaded and proved amount of Kes.35,875/-;
(e) As the appeal has partly succeeded, I award the appellants costs of Kes.50,000/-. The respondent shall have the costs of the court below;
(f) There will be 30 days stay of execution; and
(g) The file is closed.
Dated and signed at MOMBASA this 28th day of April 2023. Judgment delivered through Microsoft TEAMS.